1

Richard Ekins

St John’s,

Oxford

Note: this is a (very) rough draft. Please do not circulate it further or cite it. Any comments

gratefully received at richard.ekins@sjc.ox.ac.uk.

Statutory Interpretation and the Separation of Powers

I. Introduction

In this paper, I aim to think about statutory interpretation by thinking about the separation of

powers. In sections II-IV, I consider the nature of legislative and judicial power. I begin by

reflecting on the unity of justified authority before and apart from separation, which helps

make clear the reasons for separation. I argue first that the exercise of the legislative power is

the making of reasoned choices to change the law and second that the separation of judicial

power involves no power of interpretation, properly so-called, but rather is framed by and

helps support the exercise of the legislative power. The object of statutory interpretation,

which all subjects of the law should aim to identify, is the intention of the legislature. I

consider briefly in section V how the location of the executive power bears on the nature of

legislative power. I go on in section VI to outline, against the doubts of some scholars, how a

legislative assembly is capable of legislating well. This analysis I then extend to Congress in

section VII, arguing that notwithstanding some difficulties Congress is capable of exercising

the legislative power, such that, per section VIII, interpretive practice ought to centre on

inferring its lawmaking intentions. The final substantive part of the paper, sections IX-X,

briefly considers the implications of this analysis for the question of updating meaning over

time and for the relevance of legislative history.

II. The unity of royal authority

The first principle of constitutional order is that those with capacity should exercise

authority.1 That is, anyone who is capable of directing and coordinating others should direct

and coordinate them in order better to secure the common good. The members of some

community should stand ready to recognise the person or persons with such a capacity,

adopting his choices about what should be done as if their own.2 In many times and places,

the person with this capacity, and the person duly recognised, has taken up the office of king,

exercising authority (as is amongst the first duties of any authority) to settle the subsequent

location of authority, by making provision for peaceful succession. The king may serve his

community well by acting to secure peace and justice. The king has a duty to defend the

realm from foreign raids and from domestic unrest. He has a duty also to stand ready to give

justice to all his subjects, restraining and punishing the wicked and rewarding and

encouraging the good. The central political act, O’Donovan argues, is the act of judgment,

which is an act of moral discrimination, pronouncing on a preceding act or an existing state

of affairs and establishing a new public context.3 The king judges well in securing the peace

of the realm and in doing justice by his subjects.

1 J Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford, 1980), 246, 249-50 2 R Ekins, ‘How to be a Free People’ (2013) 58 American Journal of Jurisprudence 163, 171-3 3 O’Donovan, Ways of Judgment (Eerdmans, 2005), chapter 1 ‘The Act of Judgment’

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The reasonable king sits in judgment in his court, which is open to all. For the king to do

justice he must retain and maintain, or establish, the capacity to coordinate, to act decisively

to realise his will, not least to ensure that his judgments are not empty. This capacity requires

resources under his direct command – loyal servants, funds, lands – but requires also, and

more importantly, the continuing recognition of his subjects, especially those who themselves

have loyal servants, funds and lands. The wise king is attentive to the majesty of his office,

being represented and representing himself to others as the signification of the whole political

community, bearing the public person of the realm. And this representation is anchored in

oaths of fealty, whereby the king is the apex of chains of secular loyalty.

How is the king to give justice in his court? Like any authority, he should attend to the

rationally accessible truths about what should be done, and to what they reveal about what

should not be done. These truths will leave much undetermined, but not all, and will make

clear the shape (broad, but real) of various wrongs that warrant an answer. The king’s

judgments will be in part ‘applications’ of the natural law, but they will be also specifications

of that set of propositions, specifications made in the context of some particular state of

affairs, in which someone cries out for justice. Any reasonable king will, in giving judgment,

not neglect such customs as may exist, which have been taken to settle what is to be done.

Such customs may be primary, addressing the price to be paid to the family of one who is

killed, or secondary, speaking to the powers of the lord of the manor in determining what is

done within his domain. And they may be reasonable or not, which evaluation may

reasonably change over time as circumstances change. The king should sometimes apply and

affirm the custom in question, at other times set it aside as wicked or redundant and

substituting for it some other resolution, and at others apply it in a new and importantly

different sense, extending or restricting its reach or content.

In early times, the king will give judgment himself in his court, perhaps with the aid of his

counsellors. In later times, the king would do well to make provision for justice to be given,

in his courts, by his servants and in his name. That is, he should found courts and stand

behind them, personifying them and the justice which they promise, and rarely, if ever, giving

judgment himself in his court.4 His judges will be his servants, who will do the king’s

justice, acting in his name and acting as he would, keeping faith with the customs of the

realm, in so far as they are fit to be upheld and continued, and with any judgments he has or

kings past have made, which judgments have specified what justice demands. The good king

will found his courts but will stand ready to correct them, disciplining particular judges,

granting mercy to the guilty, and, importantly, judging the laws on which they act. This

standing willingness and capacity to correct the law is an act in his court, affirming,

modifying or departing from common custom or past judgment.

The king aims to rule with the willing cooperation of his subjects, especially the great men of

the realm who might otherwise very easily be his rivals and enemies and whose subjection to

his judgments is essential for justice. These great men, together with the king’s leading

servants, including his judges, will form his council and the king acting with the advice of his

council (with their counsel) acts for the realm. The reasonable king will also summon a

parliament, if doing so is not ruinously expensive and does not threaten discord or strife

(which is not to say the parliament is free from argument). The parliament will consist of the

leading men – magnates and barons – and of ordinary men chosen by or drawn from the

4 Ibid. chapter 11 ‘Powers of Government’

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various places and groups that make up the realm.5 The king should summon a parliament

because this helps secure the willing cooperation of all, especially in providing funds but also

in the making of decisions of far-reaching significance. The king who recognises the limits

of his kingship, that it is political rather than regal,6 is much better placed to rule well and,

not unrelatedly, to rule effectively.7 These limits involve the king’s own subjection to some

laws and his duty not to tax his subjects without their consent. Summoning a parliament

which one consults about what is to be done, and to which one puts proposals for action, is a

way to invite one’s subjects to act with you. A kingdom of willing subjects is a strong

kingdom, able to be ruled well by one who does not stand to his subjects as an equal, yet

wisely seeks counsel and is open to reason.

The king stands ready to do justice. He is open to petitions for justice, both particular and

general. The former he hears in his courts, by way of his servants the judges, and also in his

council, in which he may choose to be merciful or generous. The latter he hears in his other,

higher court, so to speak, which is in and with his parliament, hearing petitions for relief from

unjust or impractical laws, whether local or general. And in his parliament he may respond to

those petitions by changing the law, enacting a statute that grants relief. His subjects may

propose some general change in the law, and he may respond, by way of his servants, with a

particular statute.8 Or his subjects may draft a particular statute, asking the king to agree to

its terms, to act, with their consent, to change the law in this way.

In a culture that is not widely literate, and in which it is difficult to maintain a common,

standard written record of the decisions of the king in his courts or his parliament, a statute

will likely be understood not to be a strict, canonical textual formulation of an authoritative

decision, but rather as a loose record of a general decision, to be received as such.

Notwithstanding the importance of parliamentary consent, the statute is in a sense the will of

the king, especially when framed by the king in his council. In the king’s courts, the judges,

who will very often be members of that council, receive and deal with the statute on this

footing. That is, the statute records the highest mode of royal decision and action, but is not

to be approached as if it were worded scrupulously and indeed may be better understood by

those who helped frame it, which includes the judges, then by those more distant. In using

the statute, the judges receive a general decision, which bears on the existing body of law and

yet which is unlikely to precisely state what exactly the law now is. And as the decision is

the king’s, whom they serve, his will – then and perhaps now – is paramount. For these

reasons, judges may be willing to qualify, extend or even set aside the ruling that otherwise,

or most obviously, seems to be set out in the text of the statute itself.9

The king’s duty to govern,10 to secure peace and justice in the realm, requires the exercise of

a far-reaching authority that involves a mix of making and remaking laws, of judging

particular cases and applying existing laws, and making and carrying out decisions neither

required by nor forbidden by law. Thus, reflection on reasonable government before and

apart from the separation of powers, in which royal authority is unified, helps suggest the

5 FW Maitland, Constitutional History of England (1920) 6 J Fortescue, In Praise of the Laws of England, (S Lockwood, Sir John Fortescue: On the Laws and

Governance of England (CUP, Cambridge, 1997)) 7 This is a theme of Martin Loughlin’s work: see his, The Idea of Public Law (OUP, Oxford, 2003) 8 Maitland, 189; see also R Ekins, ‘Acts of Parliament and the Parliament Acts’ (2007) 123 Law Quarterly

Review 91, 105 9 J Evans, ‘A Brief History of Equitable Interpretation in the Common Law System’ in T Campbell and J

Goldsworthy, Legal Interpretation in Democratic States (Ashgate, Aldershot, 2002), 67 10 L Green, ‘The Duty to Govern’ (2007) 13 Legal Theory 165

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shape of the separated powers: the legislative power, the judicial (or adjudicative) power, and

the executive power. Or at least one sees why a reasonable king, who otherwise exercises

relatively undifferentiated authority to settle what should be done, has good reason to make

provision for (1) the settlement of particular disputes according to law and for (2) the

discussion and approval by the realm as a whole of taxation or general legal change. This

provision is a partial separation, with the powers in question remaining unified by their

relation to the person of the king who represents the whole realm. The separation may be

unstable if, as in England, the king and his parliament find themselves at odds, for the king

may enjoin his servants the judges to do as he (now) wills and he may also purport to

dispense with statutes, or act for the good of the realm (as he sees it) without parliamentary

agreement. These acts in some sense depart from the wise provision earlier made, yet they

have some warrant in the frame of the constitution, in which the king’s capacity to act

decisively for the good of his subjects is indeed central.

The (tragic) instability of the mixed English constitution resulted in the English civil wars

and in a new settlement, affirming the old doctrine that the King-in-Parliament is the supreme

authority in the realm, yet overlaying this doctrine with a new political reality, itself

constitutional, that the King would yield to his Parliament.11 Well before this time, the

insistence of Parliament that it would agree only to the detailed text of some statute, and the

increasing exclusion of the judges from the king’s council, had changed the way in which

statutes were understood, encouraging much closer focus on the precise text and making

harder to sustain arguments for extension by analogy and so forth. The shift in the separation

of powers over time thus had, and continues to have, implications for the practice of statutory

interpretation. The two sections that follow reflect on the legislative power and on the

judicial (adjudicative) power. I set out no separate discussion of the executive power, which

is not to say I think it irrelevant to statutory interpretation, notwithstanding that this would

seem to turn most directly on the relationship between legislative and judicial power. Indeed,

the unity of royal authority, and the shape of the early separation of legislative power,

suggests powerfully, I say, that the location of the executive power in some polity is highly

relevant to how the legislative power is and should be exercised.

11 J Goldsworthy, The Sovereignty of Parliament (OUP, Oxford, 1999)

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III. The legislative power

The reasonable king separates legislative authority in order to make provision for general

lawmaking, when such is required, and also to make it possible for him to make law together

with representatives of the realm at large. The origin of the legislative power in English (and

other) political history helps make clear that the need for there to be some person or body

capable of legislating comes before the question of who should legislate. In other words,

authorising an assembly to legislate changes who legislates not what it is to legislate. I aim to

explain what it is to legislate by reflecting further on the need for legislation.

The reasons to legislate are plainly closely related to the reasons for law, for legislation is a

central source of law and in legislating one acts to change the existing law, whether by

introducing into the system some entirely new (set of) propositions, or by amending or

repealing existing propositions. The point of legislative action is not to give effect to the

popular will, to majority preference. The authority of law does not turn on the consent of the

governed, even if the legal and political authorities should often maintain this consent.

Rather, authority turns on the capacity to secure the common good, which state of affairs is

an intelligible reason for those who can to act to coordinate others and for others to accept

and support such an exercise in coordination. The object of authoritative action is this

common good, not some aggregate of the preferences of members of the community. What

is true of government and law in general is true likewise of the subsidiary act of legislating,

which is that part of governing involving the deliberate making and changing of the law. The

reason to make provision for deliberate lawmaking and legal change is not that it is fair to

give effect to what people want, as Dworkin and others maintain. The reason is that the

common good requires that such provision be made, which common good is the object of the

exercise of legislative authority and makes the act of legislating intelligible.

Why is this provision necessary? Not all law is deliberately made by acts intended to make

or change the law: custom is a source of law that lacks this character and so too is case law, at

least to the extent that it is made indirectly, in the wake of adjudication. In one (secondary)

sense, a political community may have law without legislation. However, as Hart recognised,

much of the value of legal order lies in the standing possibility that legal rules may be

changed by deliberate, clear and reasoned action. A community would be in bad shape if it

had no means to modify – deliberately, clearly – the content of the rules that directed social

life. Thus, there is good reason to introduce the particular secondary rule that is a rule of

change,12 which authorises some person or body to repeal rules that are (or which have

become) unreasonable, to introduce rules that would help realise some aspect of the common

good, or to amend and improve existing rules.

Interestingly, the importance of the rule of change slips out of focus when Hart turns to

expound the shape of the modern legal system. As Finnis argues, Hart’s account of the

internal point of view of the official is strikingly passive – the official is concerned to

maintain rules that are taken already to be in force.13 What falls out of sight is the truth that

in the central case the rules consist in the reasoned choices of some person or body about

what should be done. This slip in focus paves the way for Raz’s argument that a legal system

12 HLA Hart, The Concept of Law (2nd edn, Clarendon Press, Oxford, 1994) 92-3 13 J Finnis, ‘On Hart’s Ways: Law as Reason and Law as Fact’, essay IV.10 in Collected Essays: Volume IV

(Oxford, OUP, 2011) 230, 240

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can exist without norm-creating institutions but not without norm-applying institutions.14

This arrangement may be logically possible,15 but the system in question lacks part of what is

most valuable about the central case of a legal system and is thus a distorted instance. This

jurisprudential neglect of the act of legislating, against which Waldron also rails,16 suggests

that legislative deliberation and action is somehow pre- or extra-legal, implying further that

the legislature has a will but does not reason.

The community’s need for clear, deliberate legal change provides good reason to institute a

body to make law deliberately. It does not follow that the legislature must legislate

frequently. It may be that the legislature may not have to act often or that it has to act

repeatedly and radically. It may often be reasonable for the legislature to permit secondary

forms of legal change, case law and custom, to proceed. The legislature is able to correct or

to supplement case law or customary legal rules and the reasonable exercise of legislative

authority involves overseeing the law and changing it when need be.

The key advantage of the capacity to make law deliberately is that the lawmaker is able

respond directly to the reasons that bear on changing the law. If there is good reason to

repeal a law, that is if it is obsolete, unworkable or pernicious, then one may repeal it; if there

is good reason to introduce a new rule, in that it helps restrain wrongful action or opens up

valuable new opportunities, then one may act on those reasons to adopt law to that effect.

This direct and open responsiveness to all relevant reasons distinguishes legislating from

lawmaking by other means. A judge deciding a case responds to that dispute and his decision

is limited by the existing legal materials. It is not open to him simply to change the law to be

as he thinks it should be if it were open to him to posit the law anew. The judge understands

that he is not a legislator and that it is not his task to oversee the content of the law and to act

freely to change it as is required to instantiate the common good.

The legislature responds to the reasons to change the law. That is, it decides when there is

good reason to act and how, if it acts, the law is to change. The capacity to legislate entails

the freedom to settle the content of the law by acting for that end. Freedom does not mean

that legislating is arbitrary. Rather, it means that the way in which the legislature acts,

including whether it acts and the content of the law it makes, is settled not by rules but by

how the person exercising legislative authority chooses to respond to the reasons that he or it

perceives. The legislature is thus self-starting and self-directing. It need not wait for a case

to adjudicate or a petition to arrive before it acts and within jurisdiction it may legislate as it

sees fit. The exercise of legislative authority is under the voluntary control of the institution

itself.17 For the legislature to act in this way it must have the capacity to formulate proposals

for legislative action, and to evaluate and revise them in response to the reasons that bear on

the common good. To legislate, one must consider the common good, propose a legislative

response, reason about its merits and perhaps modify it accordingly, before deciding whether

to adopt the response.

An institution free to deliberate and to act as and when it chooses is well placed to make good

law. The legislature responds directly to the complexity of the common good in that its

14 J Raz, Practical Reason and Norms (2nd edn Princeton University Press, Princeton, 1990) 129-48; cf. J

Waldron, Law and Disagreement (OUP, Oxford, 1999), 34-5 15 Cf. H Sheinman, ‘The Priority of Courts in the General Theory of Law’ (2007) 52 American Journal of

Jurisprudence 229 16 Waldron 34-46 17 J Raz, ‘Intention in interpretation’ in R P George, The Autonomy of Law (OUP, Oxford, 1996) 293, 299-301

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deliberation is open to whatever is relevant to the good of the community. The reasons for

change may justify a complex, comprehensive decision as to what shall be done. The

legislature is able to act to introduce a detailed set of legal rules that addresses an aspect of

the common good in this comprehensive way. Legislation is posited at a certain point in time

in a canonical formulation and is prospective in effect. It is a form of law suited to the rule of

law. Public promulgation and canonical formulation make the legal change easier to locate

and grasp than that found in unwritten custom or in the best understanding of a line of cases.

This advantage is contingent, but the structure of the legislative act is directed towards

positing law in the best form possible, by way of a public, canonical text, which is the focus

of legal reasoning.

The act of legislating is the making of a choice. The legislature’s duty is to act to change the

law when there is good reason for change, introducing, amending or repealing legal

propositions in order to better realise some aspect of the common good. The legislature

stands ready to change the law when need be, which calls for legislators – whose joint action

is the legislature acting – to think carefully about the adequacy of the law and about whether

legal change is warranted. When the legislature acts to enact some statute, it exercises its

capacity to change the law for good reasons, which is to say it exercises its will to adopt some

reasoned proposal for legal change. The legislative act is the decision as to what should be

done. The form of the act is the utterance of the statutory text that promulgates the

legislature’s reasoned lawmaking choice.

Legislative deliberation is reasoning about how or if to change the law, reasoning which

culminates in the working up of proposals for change that are chosen. This reasoning is

complex. Reflection on the common good may provide reasons to develop a proposal to

change the law in some way, which proposal is a complex means to the ends that constitute

the relevant aspect(s) of the common good. This proposal the legislators will develop and

evaluate, revising it to avoid some (not all) foreseen but unintended consequences and to

make it a means capable of securing some other intelligible end(s). The legislators develop

this proposal and may choose it, qua legislature, if they conclude that it is fit to be chosen,

such that there is good reason for the legal changes it introduces.

The legislative act is a moral choice made in response to reasons. One cannot legislate

well without sound moral judgment. However, sound moral reflection does not reveal an

ideal legal code, which the legislature may transcribe or translate. Reasonable legislators

will perceive that there are many goods, which do not reduce to any one master-value and

which may be realised in the lives of the many persons for whose common good they

should act. Legislators will recognise further that while some sound intermediary

principles and absolute prohibitions frame how persons should live, moral norms alone

are insufficient. The legislature’s action is framed by general moral truths but its duty is

very often to “specify” these truths, choosing in what particular forms they shall be given

effect in the law of his community.

Legislative deliberation is informed by empirical reasoning, in which legislators aim to

discern the relevant facts about the state of the world, such that they may change the law in a

way that introduces the patterns of social life (say, an absence of strife; or fair and thriving

commerce), for which they jointly act. Legislating well (or indeed even at all) also requires

technical reasoning – about the existing law and about how one’s proposed lawmaking act is

to work to change the law and the world. The craft of legislating involves developing

proposals in a form fit to change the law and the life of the community as intended. The

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elaboration of a set of legal rules, which is intended to capture the moral conclusion that a

problem ought to be addressed in a certain type of way, may suggest alternative ends for

which the legislature should act or may even warrant revising or abandoning that prior moral

conclusion.

Part of the craft of legislating is attending to how and why the persons one aims to

coordinate are likely to act. The law the legislature enacts will appeal to the reasonable,

while often compelling the unreasonable to comply. The legislators may foresee that

many persons are likely to fail to comply with the legal rules they introduce and yet

rightly refrain from choosing some alternative, more effective means of compliance if,

for example, that means is too harsh or too costly. Here, the legislature chooses some

particular (complex) means to the end(s) for which it acts, not on the limited grounds of

instrumental rationality but rather by considering the range of valuable goods in play.

The reasoning of legislators is an extended reflection on the position of their community,

its common good and the opportunities they have to act for that good. The legislature’s

deliberation involves the formation, refinement and scrutiny of proposals for how to

change the law in ways that are supported by good reasons: that is, which support, protect

or instantiate some aspect of the common good. Legislators may begin with relatively

abstract ends, such as maintaining a clean environment or a social order free from

violence, but their reflection on those ends involves their specification, identifying more

particular states of affairs that are attractive elaborations of the more abstract ends and

which are fit to be chosen.18 The formation of means to those states of affairs may in turn

develop further ends that warrant the legislature’s response (or at least its intelligent

consideration), and particular means to further ends may constitute partial ends in their

own right. The final proposal for legislative action in which deliberation culminates is a

complex scheme of means-end relations, which the legislature may choose, in which case

it acts intending the means and the ends.

The legislature legislates when it communicates or promulgates its choice that certain

propositions shall be law. The legislative act thus adopts a canonical text and

authoritatively introduces into the law the propositions the text formulates. However, the

legislative act is not first and foremost a communicative act. It is necessarily

communicative, because the legislature acts to direct the community, which means that

its choices must be made known – communicated.19 My point is simply that the act of

legislating is not a communicative act that has consequences for the content of

propositions that direct the community. The act of legislating is the act of settling on

those propositions. That is, just as law in general is seen most clearly in the bearing it has

on – the meaning and force it has in – the deliberation and action of those it addresses, so

too the primary reality of legislating is in the practical reasoning and choice of the

legislature. The central aspect of the act of legislating then is the exercise of reason and

the response of will, which culminates in choice.

18 On specification, see H Richardson, Democratic Autonomy: Public Reasoning about the Ends of Policy

(2002), especially 104, 108-10, 127 19 Cf. N Stoljar, ‘Survey Article: Interpretation, Indeterminacy and Authority: Some Recent Controversies in the

Philosophy of Law’ (2003) 11 The Journal of Political Philosophy 470, 476-7 and ‘Is Positivism Committed to

Intentionalism?’ in T Campbell and J Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism

(Ashgate, Aldershot 2000) 169-83; H Hurd, ‘Sovereignty in Silence’ (1991) 99 Yale Law Journal 945.

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I noted above that the need for legislating is prior to the question of who should legislate.

The king is capable of legislating alone, but should invite an assembly to join with him in

legislating and in due course to legislate without him. However, the king should only

authorise the assembly to legislate alone if it is capable of making and conveying intelligent

choices about how to change the law. For an assembly to be a well-formed legislature, to

exercise the legislative power as it should, it must have this capacity.

The king summons a parliament that jointly represents the realm, in order the better to secure

the willing cooperation of his subjects and to benefit from their counsel and wisdom. This

line of reasoning suggests the shape of the good reasons there are to authorise an assembly

alone to exercise the legislative power. One way to minimise the prospects of tyrannical

government is to require the cooperation of hundreds of legislators, including the support of a

majority of those assembled, to change the law. That each legislator is standardly chosen by

a great many electors is a further relevant division of power. The sheer number of legislators,

who are drawn from throughout the community, makes possible a kind of public participation

that is impossible if one person alone legislates. The assembly’s pubic deliberation involves

very many legislators, who are well-placed to bring forward and articulate a range of

perspectives and interests. The competition amongst legislators and groups of (would-be)

legislators helps focus and advance wider public argument about what should be done.

Vesting the legislative power in an assembly makes provision for an ongoing, public

argument about how or if the law should change, an argument that would have little traction

apart from the plurality of the legislators. Further, the size and diversity of the assembly

makes possible the articulation and integration, or at least serious consideration, of much

information and reasoning that is relevant to how the legislative power ought to be exercised.

Sharing the power widely in this way is a means to secure disciplined, informed legislative

action consistent with political equality.

IV. Adjudication and interpretation

The reasonable king founds courts to make provision for particular justice, for the resolution

of disputes in accordance with the law, whether particular custom, the common law of the

realm or statutes of his parliament. There is good reason for this separation of judicial, or

adjudicative, power, viz. that it helps make possible fair adjudication, in which the law is

faithfully applied to the dispute in question. The particular authority of courts then is to settle

disputes about fact and law within their jurisdiction, changing the reasons for action of the

parties by their authoritative ruling. The reason for a dispute may be disagreement about

what exactly is the law, which disagreement the court must address by way of an

authoritative ruling on point. If the legal source in question is a statute, then the court may

have to consider and rule on the meaning and effect of the statute.

Scholars and judges often speak of the courts exercising a power of interpretation. This line

of thought understands the judicial power at least to involve a power to interpret the law,

especially statutes enacted by the legislature. This understanding resonates with some more

particular explanations of what characterises the practice of statutory interpretation. The

judicial power to interpret is, some say, a power to control the legal meaning and effect of a

statute, which power constitutes an effective judicial veto over unreasonable legislation,

subject to the capacity of the legislature to try again (which legislative act is then again, as

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ever, subject to judicial interpretation).20 There is no legal change without the compliance of

judges, the argument runs, which may be withheld in the course of interpretation, such that

judicial power is in a sense a counterpoint to legislative power.

Relatedly, the power to interpret is understood by some scholars to be a judicial lawmaking

power, the exercise of which completes or extends the law made, in some sense, by the

legislative act.21 In radical form, the argument might be that there just is no legal change

until the court applies the legislation, but in less radical form, one might say that legislation is

standardly opaque and incomplete, requiring the court to make new law in interpreting it.

This mode of lawmaking, these scholars maintain, is different to legislating properly so-

called, for interpretation is somewhat confined by what has come before and by the material

in question. However, the bottom-line is that the judicial power is a power to interpret and

the interpretation of statutes is a kind of judicial lawmaking.

My discussion of the nature of the legislative power is in obvious tension with any

understanding of the judicial power as a power of interpretation. For: the legislature acts to

change the law in some specific ways for some good reason. This authority to change the law

is required to secure the common good, which entails that the subjects of law should adopt

the legislature’s lawmaking choice as if it were their own. Hence, any well-formed practice

of statutory interpretation will aim to identify and give effect to the legislature’s lawmaking

intentions and no person or body will understand himself or itself to be free to choose

whether or how to give effect to those intentions. The nature of the legislative power and its

exercise provides the object for interpretation.

In a recent paper, Endicott considers Bentham’s argument that the interpretive role of judges

is an arbitrary power, which ought to be abolished, and argues instead that “the judge’s

interpretive role gives them substantial power to determine the content of the law”,22 which

power may but need not be used arbitrarily. For Bentham, interpretation is arbitrary because

it involves the judge departing from the lawmaker’s clearly expressed intention.23 Endicott

outlines three putative solutions to the Benthamite problem, which he says is in truth

insoluble. The first is to direct judges not to go beyond the “literal meaning” of what is

enacted, where literal is used by Bentham non-literally to mean “clearly intended”. The

problem is that the legislature may have made a vague, general choice, which does not and is

not intended to settle precisely what is to be done. It would be no good, Endicott continues,

to condemn all such lawmaking, for often the legislature should make precisely such choices,

which “allow for creative, contested interpretations”. (Elsewhere, Endicott argues that

neither the application of vague terms nor moral reasoning about what should be done is

interpretation, which is an attempt to answer the question about some object’s meaning.24)

The second putative solution is to refer the question of the law’s interpretation back to the

lawmaker itself. Endicott notes that the lawmaker may not be continuous over time, but will

20 P Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’ (2004) 15 King’s College Law Journal

321; cf. R Ekins, ‘The Authority of Parliament: A Reply to Professor Joseph’ (2005) 16 King’s College Law

Journal 51 21 TRS Allan, The Sovereignty of Law (OUP, Oxford, 2013); A Kavanagh, Constitutional Review under the UK

Human Rights Act (CUP, Cambridge, 2009) 22 T Endicott, ‘Arbitrariness’ (2014) 27 Canadian Journal of Law and Jurisprudence (forthcoming), 1 23 Ibid. 5 24 Endicott, ‘Legal Interpretation’, chapter 2.2 in A Marmor (ed), The Routledge Companion to Philosophy of

Law (Routledge, London, 2012)

11

rather change, and also, and more importantly, that the lawmaker’s “interpretation” in such

circumstances would itself be likely to be a new lawmaking act.

The third solution, to which Endicott devotes much attention, proposes that the rule of law

may be secured if only the judge gives effect to the intention of the lawmaker. He outlines an

analogy to show why this is an interesting mistake. Imagine your mother leaves a note

saying “you can have half the dessert in the fridge” and when one opens the fridge one finds a

piece of cheesecake and a pot of yoghurt.25 Clearly the cheesecake is dessert. If the yoghurt

is also dessert then the piece of cheesecake is half the dessert and one may eat the whole

piece. One might think one should give the note the effect your mother intended it to have.

Endicott argues otherwise: “if you come to a reasonable view as to what counts as dessert in

the circumstances, and she wrote that you could eat half of it and you do eat half of it, you

have done all that could be asked of you in this respect of your response to her note.”26 He

goes on to say that when judges talk of giving effect to legislative intent “they are usually just

thinking about what would be a reasonable way of dealing with the application of this text in

the circumstances”, together with the premise that the legislature was reasonable. True, one’s

parents are an authority (for a child), “[b]ut your task as an interpreter is to work out what

they did, and now that they intended.”27

Intentions might be relevant, in the fridge example at least, he says, if they provide one with a

collateral reason to understand the authority to have one result in mind rather than another.

For example, in the fridge example, say one’s mother has said to one’s sister that “the

yoghurt is for breakfast, it is not dessert”.28 Endicott reasons that this might well be relevant

to what one should do, if one should do as the authority wishes, but not if one should do what

she says. He then argues that whatever the case for parents, “[c]ollateral information about

the intention of a lawmaker has no general relevance to legal interpretation.”29 His example

is a constitutional founder’s diary entry, which makes clear, let us imagine, that the

constitutional assembly understood itself to be enacting a certain rule when it agreed to the

text of the enactment. Thus, what the lawmaking assembly said (and meant) matters, but

what it intended the effect of its communication to be, which it did not communicate, does

not matter, or at least does not bind.

Endicott takes me to be amongst those who disagree with this account of lawmaking and

interpretation.30 I disagree in part only. Endicott is right, to my mind, to the extent that his

focus is on the question of how the authority’s chosen rule applies to some particular case or

even class of cases. The legislature intends to introduce some new state of affairs by way of

its lawmaking act, but in so doing it does not pick out in advance the particular applications

of the rules that it enacts, such that the question to be determined in applying a general term

is whether the legislature intends this particular application. However, the sense and scope of

the general term, which is the legislative choice, certainly does turn on what it is that the

legislature intends to convey (to which our knowledge of its beliefs about particular cases, if

any, would be relevant) and/or the reasoned choice it makes.

25 Endicott (2014, forthcoming), 9 26 Ibid. 10 27 Ibid. 28 Ibid. 10-11 29 Ibid. 11 30 Ibid. n26

12

The argument’s application to the fridge example is somewhat problematic. Adopting

Endicott’s frame, I would say that the interpretive question concerns the intended meaning of

“dessert”. Answering that question might settle the question of application, insofar as the

mother uses “dessert” to refer to a class of sweet food that plainly does not include yoghurt.

Or it might not, if yoghurt remains, as Endicott assumes, an arguable instance of the relevant

class. However, if the mother knows there is only one pot of yoghurt and one piece of

cheesecake in the fridge then she very likely intends either to convey to him (1) the option to

eat either the yoghurt or the cheesecake or (2) the option to eat half the cheesecake. In other

words, “dessert” here is not so much a general class as a way of expressing one of these two

options. (Do a pot of yoghurt and a piece of cheesecake form one whole – dessert – of which

one may consume half? I doubt it, but such language use is certainly possible.) The size of

the piece of cheesecake, the health of the child, and the needs of others would all be relevant

to determining what it is that the mother has decided. Again, it may be that she has decided

only that the child should eat half the “dessert”, with this choice leaving open the question of

whether it is reasonable to count the yoghurt as such.

Endicott’s argument is imprecise about what it is that the authority has done and about why

what it has done should change the law. The legislature exercises authority to settle how the

law should change. It acts by way of a communicative act that aims to make clear its

lawmaking intentions – its intended meaning and reasoned choice. The formation of these

intentions is what the legislature has done. So too is the promulgation of these intentions.

There are very good reasons for limits on how one infers what the legislature intends, limits

which require a certain kind of publicity of argument. But if my argument in the previous

section is right, what it is that the legislature has done is precisely to form and make known

its intentions. (Again, these intentions go most directly to the sense of the rule not the

question of particular applications.) One sees the significance of Endicott’s imprecision

about what is done in his treatment of collateral reasons. Knowing what else one’s mother

has said, or what else the legislature has said or done, is relevant to how one should

understand her or its intended meaning in this particular act of language use. There may be

good reasons to limit the use of legislative history. Still, one should certainly be free to argue

from the wider pattern of legislative action, from the history of this body of law and the other

sections that make up the whole statute that the legislature likely intends to convey this

particular meaning rather than that, notwithstanding that the sentences might reasonably be

used, in some other context, to convey some other alternative meaning.

In an earlier paper, Endicott argues that many aspects of legal reasoning are wrongly thought

to involve interpretation, viz. (1) resolving indeterminacies as to the content of the law, (2)

working out the requirements of abstract legal provisions, (3) deciding what is just, (4)

equitable interference with legal duties or powers or rights, and (5) understanding the law.31

Instead, he takes legal interpretation to be a creative, rational process for arriving at the

meaning of some object, which provides a rule for the application of the law. I have

criticised this account of the nature of interpretation elsewhere, at least in so far as it concerns

the interpretation of statutes.32 The grounds of my criticism were that the stress on creativity

and the imprecision about what the object is tend to obscure what is and should be central in

statutory interpretation: inferring the lawmaking intention that is the exercise of the

legislative authority. Moreover, inferring what was intended is to understand the law in

relevant part, as indeed Endicott’s own later discussion seems to concede. Finally, I deny

31 Endicott (2012) 32 R Ekins, The Nature of Legislative Intent (OUP, Oxford, 2012)

13

that equitable interpretation is just qualification of unconscionable applications of the law.

Rather, I say, it is a mode of reasoning that perceives that what the legislature has done may

come apart, with the intended meaning the legislature aims to convey not matching the

reasoned choice which it made in legislating and which explains that intended meaning.

These criticisms aside, I agree with Endicott, that many aspects of legal reasoning, or at least

reasoning according to law, do not involve interpretation. The legislative choice, made out

by way of the intended meaning of the statutory text, may introduce a vague rule, or an

abstract rule, or a rule that requires the subjects of the law to act morally. In other words,

legislating may and often should frame but not exhaust how the subjects of the law should

act. Very likely officials other than legislators may have to decide what is to be done.

Perhaps there is or should be a general judicial role in supervising these applications or

specifications of open legislative choices. The application or specification in question may

involve a kind of legislative power, making general rules that further detail what is to be

done, or rather the executive power to deal with circumstances as they arise. The judges may

sometimes be well placed to apply or specify the legislative choices in question, but at other

times should defer to some other body’s action to this end. The importance and strategic

significance of the court’s adjudicative authority should not be thought to entail that this

process of application or specification is peculiarly the task of judges.

The distinctive judicial power is not a power to interpret but to adjudicate, which means that

courts are capable of settling disputes authoritatively, within jurisdiction. This includes a

capacity to state authoritatively the meaning of some disputed provision, but the authority is

in settling the dispute, not in constituting legal meaning. That is, aside from settling the

particular dispute, the legal effect of the interpretation (better: the judicial understanding)

turns on the general effect of precedent, in which the decisions of courts form part of the

materials that (somehow, to some extent) constrain later courts. No reasonable judge, I say,

may self-consciously set out to exercise his or her power of interpretation. For no such

power exists: rather, one should aim to infer the legislature’s intentions, which once inferred

may call for further modes of legal reasoning, or reasoning according to law.

Separating the legislative and judicial powers helps secure the rule of law. The special virtue

of the courts is their capacity to keep faith with past commitments, making it possible for

some past act to settle now what is done, and hence for acts taken now to frame what is done

in the future. The past act is most obviously an exercise of a legal power, especially of public

lawmaking but also of contracting or so forth. The judiciary’s disposition to maintain

continuity over time secures the advantages of law and mitigates the temptation on the part of

rulers (and others) to set aside past choices when their application now prove inconvenient or

difficult. Perhaps a wise ruler might at times do better to decide now on the merits rather

than to abide by some past act, but we value being able to make and rely on rule that is

indeed a rule, not least since justice often requires as much.

The judicial power to adjudicate independently, to determine how some legal rule applies to

the case in question, is not a power of tacit veto or amendment. Rather, in finding the law the

court stands in the position of the law subject, adopting the authoritative (promulgated)

choice as if one’s own. Inferring what the legislature has chosen very often calls for

evaluative reasoning on the part of the law subject: reasoning to make sense of the utterance

of this semantic content in this context and, strikingly, to understand the complex means-ends

reasoning on which the legislature acts in choosing to change the law. The need for

evaluative reasoning is consistent with the truth that it is the legislature’s choice that settles

14

what should be done. The subject of the law, including the judge, is not at liberty to remake

the legislative act to better suit one’s own dispositions or choices. My point is that subjection

to the authority of another is an intelligent act, requiring a sympathetic reflection on the

reasoning of the authority, a reflection framed and informed by one’s exploration of the

rationality of using this form of words to convey some meaning.

One finds an apparently similar, but importantly different, line of argument in TRS Allan’s

work.33 Allan’s concern is to stress that the legal meaning and effect of a statute is to be

found in its principled application to particular cases, in which courts should reflect on what

the legislature should have decided in enacting this statute. The legislature is not a single

person, which means, Allan maintains, that it should not be approached as a speaker whose

communicative intentions settle legal meaning. Rather, the court should reason by way of the

heuristic of the (imaginary) reasonable legislator, asking how he or she would adapt the

general statutory purposes to the particular question of principle at hand.34 For example, if

rape-shield legislation provides that the court shall not grant leave to cross-examine the

complainant in a sexual offence case save in three carefully specified circumstances, one’s

dialogue with the imaginary legislator might warrant the conclusion that the legislation

should be taken to be subject to a proviso that the court may grant leave whenever to fail to

grant leave would deny the defendant a fair trial.35 Lost here is concern for the authority and

reasoned action of the enacting legislature, which clearly chose to impose careful limits on

the judicial discretion to permit cross-examination, limits which Allan’s reading flatly

ignores.36 The legislature acted to specify the right to a fair rape trial and one may readily

understand its reasoning and give effect to its choice even if one would do otherwise.

V. Locating the executive power

The reasonable king exercises the power of governing to make provision for securing the

common good, including by separating legislative and judicial power. The executive power

is what remains of the general power to govern after this separation. What remains is an

immense, far-reaching responsibility to act for the common good by exercising public

powers, apart from legislation and adjudication, and by deploying public resources within the

frame of (that is, subject to the rule of) positive law.

For Locke,37 while the legislature may and should meet only from time to time, the executive

is required constantly, standing ready to carry out the laws, which is both to enforce them in

particular cases (including giving effect to judicial orders in particular disputes) and to take

such action as is permitted or authorised by law and which it thinks required in the public

interest. In this way, the executive is the active part of government, constantly taking such

actions as it judges the common good requires (including most fundamentally to maintain

that peace which is a precondition to decent social life) within the scope of its lawful powers.

Or to put the point otherwise, the executive is the institution – itself a complex set of

33 TRS Allan, The Sovereignty of Law (OUP, Oxford, 2013) 34 See further TRS Allan, ‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning and

Authority’ (2004) 63 Cambridge Law Journal 685; and for criticism, my ‘The Relevance of the Rule of

Recognition’ (2006) 31 Australian Journal of Legal Philosophy 95 35 R v A (No 2) [2002] 1 AC 45 36 See further my ‘Legislating Proportionately’ in G Huscroft, B Miller and G Webber (eds), Proportionality

and the Rule of Law: Rights, Justification, Reasoning (CUP, Cambridge 2014, forthcoming) 37 J Locke, Two Treatises on Government, II, paras 143-148

15

institutions – with the legal authority and the practical capacity that makes possible carrying

out this set of actions. These actions may be more or less general or particular, ranging from

the formulation of grand strategy, to the decision to exercise military force here and now, to

the deployment of some particular forces to that end, to the tactics adopted in the course of

that deployment by some particular soldiers.

The executive power is at once both the power (authority and capacity) exercised by

thousands or millions of officials acting jointly and the power exercised by one or a few

preeminent officials to direct, to some extent, the actions of the other officials. In the latter

sense, the power might remain in the king, notwithstanding the partial or complete separation

of legislative and judicial power, or might be exercised by a president (an elected king) or a

government formed from within a legislative assembly. Whatever the number of persons in

whom the power is vested, it is characteristic that the power is held and exercised by a person

or group that is unified and is capable of decisive action. Thus, the executive is marked by

hierarchy in a way that is not true, or not nearly so true, of the legislature or even the

judiciary (the Supreme Court does not stand to inferior courts as the king does to his

servants). The reason for this hierarchy and unity is obvious: the executive power cannot be

exercised properly if its exercise requires the agreement of disputing parties, for the failure to

secure such agreement may frustrate the ongoing action that the common good requires. It

would be unwise to subdivide the executive in such a way that different institutions had

different masters, themselves not subject to a common authority (apart from the legislature

qua law maker). For this reason, while Locke distinguishes the federative (defence, foreign

affairs) from executive powers, he argues both must be exercised by the same set of hands,

otherwise one has instituted a standing prospect of civil strife.38

I argued above that there were good reasons for the legislative power to be exercised by an

assembly, partly because this divides authority amongst many hands. Does the need for

resolute action require the executive power be exercised by one person alone? Hobbes

argued forcefully for vesting sovereign power in one person rather than in many for exactly

this reason.39 However, I answer that there are good reasons to vest the executive power in

many hands to the extent this does not compromise unity. In the British constitution,

simplifying only a little, the executive power is held by the Crown, with the Queen acting on

the advice of her responsible ministers, or by departments that consist of Crown servants who

act on the direction of the Queen’s responsible ministers. The Crown personifies the whole,

but the constitutional reality is that the executive is headed by cabinet, which is a group

consisting of leading ministers who hold the great offices of state. This cabinet jointly sets

government policy, with unity being maintained both by the convention of collective cabinet

responsibility and shared political interest. The Prime Minister is the Queen’s first minister

and forms a government, but cabinet does not do his or her will, is not his or her instrument

for implementing policy. The advantage of cabinet rule is that no one minister, not even the

Prime Minister, enjoys unrestrained freedom. The Opposition in the legislature constitutes a

government in waiting, well-placed to present an alternative to the voting public, and in a

somewhat similar way leading members of cabinet could succeed or supplant the Prime

Minister, which prospect disciplines him or her.

Parliamentary and presidential systems are of course distinguished by the relationship that

obtains between the legislature and the executive. In the former, the executive is the leading

38 Ibid. 39 T Hobbes, Leviathan, A Martinich (ed) (Broadview Press, Peterborough, 2005), chapter XIX

16

subset of the majority party, a group of ministers who jointly enjoy the confidence of a

majority of the legislature, or at least of the house responsible for supply. The entitlement to

form the executive, to direct the great offices of state, turns on securing and maintaining the

confidence of other legislators, which if withdrawn ends the government. In the presidential

alternative, the executive stands apart from the legislature in that it does not require the

continuing confidence of legislators and enjoys its own direct entitlement to rule. That the

executive may continue apart from majority support in the legislature in turn makes it much

more likely that the an executive will lack such support, for the legislature does not conceive

of itself as forming and maintaining a ministry. The prospects for coordination of legislative

and executive power are therefore much poorer in a presidential than a parliamentary system,

in which the government is in a sense a committee of the legislature.

Plainly it is possible to some extent to separate the executive and legislative powers. Indeed,

for the reasons outlined in section II, there are very good reasons, first, to prevent the king

alone from legislating and second, to authorise an assembly alone to legislate. The merit of

authorising an assembly to legislate is in part that it does not exercise the executive power,

hence is capable of attending directly to the question of whether the law should change

without temptation to take the law already to have changed, to better suit its present plans or

priorities. Having said this, it is difficult to isolate the executive from the legislative power

and it may well be unwise to attempt as much.

The sound exercise of the executive power requires intelligent legislative provision. And one

cannot legislate well, often, without the benefit of executive insight. More importantly, the

line between executive and legislative power is sometimes very fine, with the formulation

and promotion of public policy involving both. Put a different way, good government

requires the integrated exercise of the powers. Yet the executive power must be subject to

the legislative power in a sense, which in turn has to make provision for continuing executive

power. Good government, it seems to me, requires the integrated, coordinated exercise of

differentiated powers, with legislative power informed and framed by executive power (say,

in proposing a budget for the public education system, which turns on a coherent plan for

spending and action, itself understood in relation to other spending commitments) and

executive power in some way disciplined by the legislative power. This discipline is twofold.

First, it is a matter of subjection to the rule of law, such that statute frames, directs and limits

the executive. Second, it is a matter of ongoing financial support, with the legislature

choosing to continue to authorise supply. The power to withhold supply was critical in the

British Parliament’s struggles with the king, when the king’s authority to act was not

otherwise dependent on legislative confidence. The power remains critical in the United

States, I suggest, because the president replaces the king and sometimes cannot be brought to

heel save by financial means. Parliamentary control of finance remains of utmost

constitutional importance in Britain but financial sanction is more or less unnecessary, for the

executive requires legislative confidence. No need then to defund the executive, which

would be problematic (putting it mildly) in any case, in view of the scale of the executive and

the importance of the ongoing capacity to govern.

Of course, in a presidential system like the United States the formal separation of executive

and legislature is complicated by, inter alia, the presidential veto (a sharing of legislative

power with the executive) and the role of agencies (institutions that form part of the

executive, enjoy wide statutory powers and are directed to some extent by the President and

overseen in part by Congress). This mingling of executive and legislative powers rather

confirms that whereas the rule of law requires and justifies a fairly strict separation of judicial

17

power, there is not quite such an obvious way to structure the political authorities, to frame

how they are jointly to legislate and act to govern the polity well.

VI. The social reality of well-formed legislative action

Many scholars doubt that a group of many legislators, who disagree with one another about

what is to be done, could possibly respond to reason and choose as one. That is, while it

seems plausible that the interaction of legislators might produce outcomes, these outcomes

(which is to say: statutes) should not be thought to be the decisions of any single agent, for no

such agent exists. After very briefly outlining and critiquing the main lines of argument in

question, I explain, again briefly, how the well-formed legislative assembly is an agent that is

capable of exercising rational agency. My strategy, following the classical method of social

theory, is to adopt the perspective of the reasonable legislator, whose reasoning and action

constitutes the central case of the institution of the legislature, and whose self-understanding

explains what it is for the legislature to act.

Amongst the most powerful and important arguments that the modern legislature is incapable

of reasoned choice is the argument that the legislative assembly is best understood to be a

machine rather than an agent. The legislature generates outcomes from the interaction of the

many legislators, but does not respond, qua legislature, to reasons. It is not structured, in

other words, to make reasoned choices. The machine conception of the legislature finds

surprisingly wide support in legal and political theory. Dworkin outlines this conception in

stark terms in his early work:

[A]ny political judgment about what makes the community better as a whole must

count the impact on each particular person as having the same importance. As

Bentham said, ‘Each man [and woman] to count for one and none for more than one’.

The political process in a democracy is meant to translate that requirement into

legislation through the institutions of representative democracy. The welfare

economists have worked out a theory to how that is achieved. Each individual,

through his votes and other political activity, registers or reveals a preference. The

political process is a machine which is calculated, though imperfectly, to reach

decisions such that, though some individuals suffer and others gain, the overall

preferences of all the people, considered neutrally with the same consideration for the

preferences of each, is improved.40

(The passage goes on to argue that the point of judicial review is to correct the excesses of the

machine, which is liable to double-count.) Why think the legislature functions thus?

Dworkin reasons that legislators seek re-election and hence aim to do as their constituents

please and as lobbyists direct. This passive conception of the legislator, in which legislators

respond directly and uncritically to the stimuli of constituent and lobbyist pressure, owes

much to public choice theory, in which the legislative process is understood to be a

‘transmission belt for the translation of interest-group preferences into public law’.41 Yet the

40 R Dworkin, ‘Social Sciences and Constitutional Rights—the Consequences of Uncertainty’ (1977) 6 Journal

of Law and Education 3,10 41 D Rodriguez, ‘Legislative Intent’ in P Newman (ed), The New Palgrave Dictionary of Economics and the

Law (Macmillan, London, 1998), vol 2, 563, 565 (Rodriguez does not endorse the public choice conception);

see R Tollinson, ‘Public Choice and Legislation’ (1988) 74 Va L Rev 339–71.

18

public choice conception of the legislator is absurd for legislators may and often do act for

reasons and are not the passive play-things of interest groups.

More interesting is the argument from social choice theory, which explores Arrow’s

impossibility theorem. Kenneth Shepsle argues that there are no reasons that explain any

particular legislative majority’s policy choice. Each legislator has reasons, but the majority

does not: many legislators make up the winning majority and ‘their respective reasons for

voting against the status quo may well be as varied as their number.’42 The winning majority

consists of legislators acting for different reasons, to express different preferences or acting

strategically. There is a majority for this bill but the majority does not make a coherent

collective choice for reasons in the way that a single person does. The policy that a majority

votes to enact is largely the result of what Mashaw terms ‘the institutional matrix’,43 that is,

the internal structure that determines how the legislature votes on various policy proposals.

(Many legal scholars adopt this argument.44)

Doubts of this kind about the legislature’s capacity to act for reasons are very widespread.

Strikingly, even Jeremy Waldron, in arguing for the dignity of legislation as a principled

source of law, takes the legislature not to be an agent but rather to be a kind of voting

machine.45 The machine produces a statute by aggregating the result of a series of votes by

legislators on particular legislative texts. The sequence of texts (particular sections) that

survives the series of majority votes is the statute. The point of the model is to show that the

content of the statute was not the preference, and so was not the object of the intention, of any

one legislator. Instead, the statute is just the product of a series of majority votes.

Legislation produced in this way, Waldron argues, may be a reasonable exercise of authority,

such that the community has good reason to take the content of the statute to settle what is to

be done. Thus, Waldron’s theory of the legislature is similar to Dworkin’s, notwithstanding

the former concludes that the indirect interaction of the legislators may give rise to legislation

that is reasonable, that is in some sense principled.

These theories fail to explain well-formed legislative action, which is to say they do not

explain the central case of a legislature. They fail to adopt the internal perspective of the

reasonable legislator, whose choice and action constitutes the central case. Hence, they fail

to grasp the point of the institution and the capacities that mark it out as a type. Pace

Dworkin and Waldron, a legislature that functions as a machine rather than an agent is not

capable of acting well, of producing legislation that is and should be authoritative. The

machine is incapable of answering the need for legislation, of responding to the reasons for

changing the law with some coherent, intelligible choice. The statutes produced by the

machine-legislature are likely to be incoherent, contradictory and unreasoned. This prospect,

the risk of which is real, is a good reason for legislators to frame their joint action to avoid

collective incoherence, to make possible action like a rational agent. Thus, reasonable

legislators, whose self-understanding picks out the legislature as a distinct, stable type of

institution with a characteristic mode of action, will set out to avoid forming a machine and

instead will strive to form a purposive group that exercises agency.

42 K Shepsle, ‘Congress is a “They,” Not an “It”: Legislative Intent as Oxymoron’ (1992) 12 International

Journal of Law and Economics 239, 244 43 J Mashaw, ‘The Economics of Politics and the Understanding of Public Law’ (1989) 65 Chicago-Kent Law

Review 123, 134 44 Ibid. See also F Easterbrook, ‘Text, History, and Structure in Statutory Interpretation’ (1994) 17 Harvard

Journal of Law & Public Policy 61 45 Waldron 119-146

19

The legislature is a complex group.46 The legislative assembly acts on majority vote. Its

members enjoy decision-making equality in voting, but not in agenda-control, and the group

structures their interaction in various stages by detailed procedural rules. The purpose of the

legislature is to make law deliberately and for good reasons, which is to say for the common

good. That is the purpose for which legislators act jointly and it is also the purpose that

defines the enduring institution of the legislature, which particular legislators join for a time.

The legislature stands ready to change the law, when there is good reason to do so. Again, it

may be that it can act well without legislating frequently. The secondary or standing

intention of the group, which defines the institution, and which all legislators share, is to

stand ready to legislate when need be, acting on particular occasions in accordance with the

legislative process. This standing intention is grounded in the unanimous interlocking

intention of all legislators, who intend to act jointly to legislate.

The legislature acts to change the law. The act of the legislature, the exercise of its capacity

to legislate, is the enactment of this or that statute. The legislature acts on a proposal for

legislative action – a bill – the content of which is the particular plan on which the legislature

acts, and thus its primary intention (to be distinguished from the secondary intention noted

above). The bill is a proposal for legislative action because it is a plan for how to change the

law. It is a detailed text setting out how the law will change if it is enacted. One finds

legislative intent in the plan that coordinates legislators, which explains their joint action.

The detail of the proposal is the focal point for argument and action. It is the proposal that

legislators deliberate about and which, if they assent, they will act to introduce. That is, the

proposal is what legislators hold in common. They act together by reference to that proposal

and the legislature acts when they act to adopt it (a proposal that is rejected is not adopted and

so there is no legislative act).

The plans of action that the legislature introduces should be coherent and grounded in an

intelligible chain of reasoning. The proposals that legislators form and move and eventually

adopt are considered for their suitability to be adopted by the legislature as a whole – that is,

by the intelligent agent that the legislators jointly aim to constitute. If the legislative process

truly were a machine, say Waldron’s voting machine, then it would be extremely difficult for

legislators to attend to the shape of the proposal put before them (strictly speaking, no unified

proposal for action would be put before them; this would instead arise as a side-effect of their

interaction). However, there is good reason instead for the legislative process to be structured

otherwise, as indeed it is in most modern legal systems. Proposals for legislative action are

developed over time in stages at which the coherence and intelligibility of the whole plan of

action is before legislators (whether in committee or in plenary session). A subset of

legislators, especially party leaders, the mover of the bill, and committee leaders, enjoy

unequal control over the shape and content of the proposal, which helps make it possible for

rational plans to be formed notwithstanding the possibly conflicting intentions of the many

legislators. These plans of action, which may indeed be no legislator’s first choice but which

constitute complex, coherent means to intelligible ends, are then adopted by the legislature as

a group in the act of enactment.

Far from legislative action being a side-effect, or even the overlap or coincidence, of the

individual action of legislators,47 legislating by assembly is the joint act of the members of

46 Ekins (2006), 112-3 47 John Gardner, Joseph Raz, Larry Alexander and Andrei Marmor each conceive of it in this way.

20

the institution. The particular actions of legislators are unified by the rational order of their

standing intention to form an institution that acts rationally and by the rational order of their

particular intention to choose to change the law in some specific ways for some specific

reasons, which reasoned choice is made out in the proposal open to all. The social reality of

the well-formed legislature is thus that it exercises rational agency, being structured to form

and adopt reasoned plans and to reflect on their coherence. The axiom that grounds orthodox

interpretive practice – that the legislature acts to convey some meaning, which articulates its

reasoned lawmaking choice – has sound foundations. Thus, the well-formed assembly stands

ready to legislate well and in its particular actions exercises its capacity to respond to reasons

for changing the law by making reasoned choices.

For the reasons outlined above, all modern assemblies depart from the legislative state of

nature and make provision for an internal hierarchy, in which some legislators enjoy positive

or negative agenda power and are thus well-placed to frame joint decision-making. These

internal hierarchies turn on the creation and allocation of legislative offices and on the

organisation of legislators into political parties. They coordinate the actions of the many

legislators into a process that is which capable of supporting and culminating in rational joint

action. One assembly differs from another in part by the shape of its internal hierarchy, say

on how widely negative agenda power is distributed and so forth.

Elsewhere,48 I explore in detail how legislators form a standing intention to legislate, which

involves creating and maintaining a complex process for working up and choosing plans of

action, within which process internal hierarchy is central. I illustrated this exposition by way

of a study of the procedures of the House of Commons. In a recent reflection on the

relevance of legislative intent to statutory interpretation, Andrei Marmor cites my work and

argues that its relevance is confined to parliamentary systems, in which government bills are

introduced and adopted without amendment.49 This is an intelligible riposte, explicable in

part by my tentative conclusion that legislatures in parliamentary systems are better placed

than their presidential equivalents to legislate well. I consider in the next section the

important question of how far my present account of well-formed legislative action does hold

in relation to Congress. However, I should first stress that it is no part of my argument to

maintain that Parliament’s capacity to form and act on intentions reduces to the prospect of

government bills being introduced and adopted without amendment.

Most government bills do, and should, change significantly across the course of the

legislative process, which at times extends across several years and parliamentary sessions.50

The minister’s understanding – the plan on which he or she acts – is not constitutive of the

bill, but rather for good reason the minister enjoys considerable agenda-setting power. This

pre-eminence in the development and change of the bill, with the support of cabinet

colleagues and expert parliamentary counsel, makes possible coordinated, coherent

development of legislative proposals. Thus, while bills change, at each point they are worked

up with a view towards their adoption as a single, coherent plan of action, fit for choice by

one agent. The subsidiary nature of the House of Lords supports this understanding of the

legislative process, with bills originating in one house and being developed as they move

between the two, with argument in the Lords very often carrying forward argument in the

Commons, in a context lacking the political salience of the latter. The second stage of

48 Ekins (2012), chapter 8 49 A Marmor, The Language of Law (OUP, Oxford, 2014), 113 50 S Kalitowski, ‘Rubber Stamp or Cockpit? The Impact of Parliament on Government Legislation’ (2008) 61

Parliamentary Affairs 694

21

deliberation in the Lords is very helpful in working over the detail of some bill without

introducing discordance into the scheme in question. Thus, while parliamentary procedure is

characterised by the central place of ministers and government business, this feature does not

render deliberation otiose but rather helps the many legislators jointly make coherent,

reasoned choices.

VII. The nature of Congress

I turn now to the question of the extent to which Congress is a well-formed legislature, such

that there is good reason to understand it to be an agent capable of reasoned choice. As noted

above, I have argued elsewhere that legislatures in presidential systems, like Congress, are

less well-placed than their counterparts in parliamentary systems to legislate well. The

separation of the executive, and the corresponding lack of an imperative to form a stable

majority that supports an administration, makes it harder to act coherently. However, I

maintained that there was good reason to think Congress an institution that is generally

capable of legislating adequately, viz. capable of forming and acting on intentions to change

the law in some way for some reasons. My aim in this section is to consider the composition

of Congress in somewhat more detail with a view to reconsidering, and perhaps sharpening

up, my conclusion concerning the capacities of Congress to legislate. I proceed by way of

engagement with the work of Victoria Nourse on point.

Nourse argues that every theory of statutory interpretation carries with it an idea of Congress,

which carries with it a theory of the separation of powers.51 She critically considers the idea

of Congress that underpins textualism, purposivism, game theory, arguing that each goes

astray in failing to perceive some key features of the institution.52 Textualism takes Congress

to be incompetent, chaotic, and incapable, yet fails to grasp the reasons there are for members

of Congress to act as they do, which action grounds intelligible, if often ambiguous,

legislative action. Further, the textualist focus on plain meaning is itself ambiguous,

arbitrarily privileging elite, legalist meanings over popular, prototypical meanings.

Purposivism on the other hand wrongly assumes that Congress is made up of reasonable

persons pursuing reasonable purposes. The assumption is wishful thinking, Nourse suggests,

and cannot explain the prevalence of unclear legislation. Game theory is much more

sophisticated in its analysis of Congress but goes wrong in overplaying the analogy between

contract and legislation and in assuming that legislation is always the outcome of some deal

and falls to be understood (interpreted) as such.

The features that distinguish Congress from courts, she argues, are the electoral connection

and the super-majoritarian difficulty.53 The first refers to the importance of the relationship

between members of Congress and their constituents to whom they are answerable.

Legislators care intensely about re-election and are subject to incentives to voice the concerns

and opinions of their constituents and to speak and act in ways quite different to judges. The

second refers to the difficulty of enacting legislation, in which any proposal must clear a

sequence of hurdles, including multiple committees, plenary session, approval of the other

chamber (including Senate filibuster), and the presidential veto. These two features give rise

to a third, the principle of structure-induced ambiguity, which means that it is rational for

51 V Nourse, ‘Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the

Separation of Powers’ (2011) 99 Georgetown Law Journal 1119 52 Ibid. 1136-64 53 Ibid. 1125-34

22

legislators to be imprecise, not least because they are speaking to the public (especially their

own constituents) and to courts (and other officials) at the same time. For, while “there are

few electoral costs to ambiguity (no one ever lost an election because of imprecision),

ambiguity may yield essential gains in achieving supermajority consensus.”54 Nourse takes

for granted that legislating is in part a conversation between representatives and citizens, in

which what the legislator is able to say about the legislative process (“I voted for X”) is more

important than what the legislator has done. Thus, while “[c]ourts prize interpretive virtues”

(precision, focus on rules and precedent, and detailed reflection on language),

“[l]egislatures… prize collective and representational virtues” (action, agreement,

compromise, addressing actual needs of the subjects of the law).55

Attention to the structure of the legislature and its action entails that interpreters go wrong in

assuming that the expert, legal meaning of statutory terms ought to control. Often, legislative

deliberation and action is focused on statutory terms understood in their popular, prototypical

sense, for the legislators do not aim for precision and it is these meanings that ground the

conversation each legislator has with his or her constituents. It follows, Nourse argues, that

the right mode of statutory interpretation, which is consistent with legislative supremacy, is

ordinary meaning textualism enriched by legislative history. This is an unusual pairing, but

an intelligible one. Nourse argues that studying the conversation amongst legislators may

help make clear whether the legislators were using terms in their ordinary, popular sense or in

their legal, expert sense, and if the former, will provide further evidence of what exactly is

the popular, prototypical meaning.

If an idea of Congress carries with it an idea of the separation of powers, then Nourse’s

account of the latter, like the former, focuses on the relationship between the people at large

and the various institutions that represent them. She eschews essentialism about the

separation of powers, which presupposes a sharp separation amongst branches than the

Constitution, a presupposition undermined by, say, the presidential veto or Congress’s power

to adjudicate impeachments. Yet shared-power theories are unhelpfully imprecise. Much

better, Nourse argues, to focus on relationships of representation. This focus helps make

clear what is objectionable about theories of statutory interpretation that call for, or license,

extensive judicial lawmaking. Such theories involve a shift in power from an institution with

a strong electoral connection to one with none (“the judicial aggrandizement risk”), and a

shift in power from a body representing states and localities to one that is a national

institution (“the federalism risk”), and the risk that the court will impose the meanings of a

legislative minority (“the super-countermajoritarian risk”).56 In different ways, textualism,

purposivism and game theory encourage these risks.

In a more recent article, Nourse extends this analysis further.57 She argues that the metaphor

(or fiction) of ‘intention’ ought to be abandoned as a distraction, and instead that scholars and

courts ought to focus on ‘decision’.58 It follows that one should understand the rules of

procedure by which Congress acts, as this will help reveal its decisions. This line of

reasoning Nourse takes to open up an illuminating new way of using legislative history, in

which the relevance of various elements of that history at last becomes clear. Nourse argues

54 Ibid. 1130 55 Ibid. 56 Ibid. 1172 57 V Nourse, ‘A Decision-Theory of Statutory Interpretation: Legislative History by the Rules’ (2012) 122 Yale

Law Journal 70 58 Ibid. 74, 81-85

23

further that the close study of the rules broadly supports her account outlined above, although

in this later work she perhaps makes clearer that (a) the rules provide incentives to introduce

redundant language (surplusage) and (b) legislators are for the most part simply indifferent to

later judicial interpretation.59 Judicial failure to understand congressional procedure may

have very serious consequences, not only in the mishandling (or wrongful setting aside) of

legislative history, but also in the adoption of dubious theories about legislative action. For

example, the fragmentation of congressional authority, by way of the committee structure,

over appropriations and authorization has the consequence, Nourse argues, that it was

problematic for the courts to hold that appropriation of funds for the Tellico Dam project did

not impliedly repeal the Endangered Species Act in relevant part. The judicial reasoning that

if Congress had wanted to repeal the Act in the course of making an appropriation it would

have founders, Nourse says, on the impossibility under its own procedure of Congress

making any such decision.60

Before turning to the substance of Nourse’s theory, I interject some doubts about her

terminological turn. The distinction she introduces between decision and intention is

unsound, for properly understood a decision just is an intention. Nourse hopes by focusing

on decision rather than intention to sidestep the philosophical and legal literature concerning

group intention, relying on the absence of any widespread scepticism concerning groups

making decisions. The mismatch in scepticism, to the extent it holds (I am not so confident:

Dworkin for example seems at times to doubt that the legislature is capable of making

decisions and certainly the grounds of his argument against legislative intent in Law’s Empire

requires this more general scepticism), is interesting. However, it does rather suggest a

confusion concerning joint intention, which is not a shared mental state but is instead the

intelligible order that governs and unifies the intentional action of the members of the group,

which order is constituted by some pattern of interlocking intentions.

Let me return to Nourse’s fascinating study of the legislature. It adopts quite a different

focus to my own in stressing the democratic character of the legislative assembly. Nourse

justifies her exclusive focus on the electoral connection, super-majoritarian difficulty and

principle of structure-induced ambiguity by arguing “[m]y purpose is to describe the

minimum necessary conditions for an evidence-based theory of legislative process, and

through that, statutory interpretation.”61 Specifically, she aims to work from “uncontroversial

evidentiary premises” to call into question textualism, purposivism and game theory. There

is nothing objectionable about this strategy, save that the resulting idea of Congress is

incapable of bearing the weight of a full theory of statutory interpretation and the separation

of powers. Also, I am not so sure Nourse’s elaboration of those premises is uncontroversial.

More importantly, what is missing from the study is not ever more detailed political science

analysis, with its eye on predicting policy outcomes,62 but rather discussion of the point of

legislating and the way in which this point frames how (reasonable) legislators act.

Understanding a type of institution or practice requires one to attend to the reasons there are

to choose and maintain this institution or practice, reasons which mark out a general type.

These reasons are largely absent from Nourse’s account.

These reasons matter because they explain the constitutional grant of legislative power and

the continuing authority that the legislature exercises. They also explain many of the

59 Ibid. 130, 146 60 Ibid. 130-133 61 Nourse (2011), 1134 62 Ibid.

24

procedures that make possible legislative action, as well, crucially, as the understanding of

those legislators who do strive to change the law for good reasons. Nourse picks out, and

gives explanatory priority to, some possible ways legislators act. Her analysis helps reveal

some important truths, about which more below, but also advances a distorted account of

legislative action. Like Marmor,63 Nourse takes legislation to be a complex, strategic

conversation, in which legislators speak both to judges and to the public. However, for

legislators to change the law they must act jointly. Nourse’s discussion makes clear that she

takes the electoral connection to turn much more on what legislators say (about what they do)

than on what they do: hence why there are no votes in precision. Doubtless some, perhaps

many, legislators act thus, intending to posture, while remaining quite uninterested in the

legal changes actually made. Yet the claim, and the more general distinction between

interpretive and legislative virtues, is surely overstated. Some legislators and all good

legislators aim to change the law for good reasons. And some voters and all good ones are

concerned with what it is that legislators have chosen and will choose.

There may well be good reasons for Congress to be less precise in drafting legislation or in

making legislative choices than its Westminster counterpart. The way in which the

legislature makes provision for joint action may make it the case that striving for precision in

drafting would too often frustrate acting to change the law at all. And the broader

constitutional structure, in which the executive power stands apart from and is yet somewhat

responsive (especially in the form of agencies) to congressional action apart from legislating,

may mean that Congress need not always make precise legislative choices. However, none of

this is to say that legislators will not very often act with an eye on securing some particular

change, even if somewhat vague, in the law. The division of legislative labour likely entails

that in relation to many acts the concern of most legislators is not with the particular detail of

the legal change in question, about which they may be ignorant. Yet this detail will and

should often be of utmost concern to those legislators who are most closely involved in

developing and advancing the proposal, not to mention many other citizens and officials other

than legislators. The will of Congress is not settled by the intentions of those active

legislators, but the plan of action that is open to all legislators, including others whose

proximate interest is grand-standing, will turn on what those active few act to put before

others, which falls to be understood within the frame of congressional procedure, itself the

means to the exercise of the legislative power.

The concern to legislate well, to act in a way that in fact changes the law in some good way,

explains the point of the institution and informs the reasoning of legislators. These good

reasons continually inform what the institution is for, what it should be, what it is capable of

being. And this entails that these reasons help structure the interaction of legislators, bearing

on how legislators reasonably understand what it is that they jointly do. The danger then in

trying to work out from uncontroversial premises about legislative motivation is that one

loses sight of some reasons that are central to the self-understanding of legislators.

Another very interesting dimension to Nourse’s analysis, it seems to me, concerns the

structure of representation. Her discussion presupposes that each legislator understands

himself, and is understood, to represent his constituency, rather than the whole political

community. It follows that he, and thus they, will act together in a particular way, with a

view to forming deals that secure mutual advantage. Nourse might reply that if constituents

understand themselves to be members of the whole, then their elected representatives will

63 A Marmor, ‘The Pragmatics of Legal Language’ (2008) 21 Ratio Juris 423; cf. Ekins (2012), 238-9

25

sometimes act on this basis. Perhaps, yet even so if this is how representatives act, then this

suggests that Congress is structured much more like Burke’s congress of ambassadors rather

than a parliament of one nation.64 There are good reasons, I think, for a legislature to be the

latter, for the former is not apt to legislate well or to make possible intelligent self-

government. However, that Congress is structured in the former way matters, for it frames

the capacities of the institution, and its likely action, on which interpretive practice centres.

I am not sure whether Congress is better understood to be a congress of ambassadors or a

parliament of one nation. In the Westminster model, the legislature represents the whole

people, with the executive’s authority requiring in part the continuing support of that

representative body. This formation of the executive within the legislature provides very

strong support for coherent, unified action, which is capable of precise and comprehensive

lawmaking change. The Washington legislature’s distance from the executive, which itself

(also?) represents the whole nation,65 dulls the imperative for majority unity and may mean

more freedom and incentive to bring the concerns and opinions of constituents into view. It

is likely to be less good at integrating such into one reasoned choice. The Washington model

may help avoid some of the ills of (royal) government, but at the cost of a reduced capacity to

secure the goods of (unified, coherent) government. This might very well be a cost worth

paying in relation to a federal legislature that has strictly enumerated powers, when state

governments remain robust. It may be less attractive for a legislature with plenary powers

and responsibilities, as I take it Congress has more or less become.

VIII. The central axiom of statutory interpretation

What are the implications of this study for statutory interpretation? The two types of

legislature are both legislatures, the point of which is to change the law by way of reasoned

choices. However, the different composition and self-understanding of these institutions

makes for different dispositions. Hence legislative proposals may be made, developed and

understood somewhat differently in each. In both cases, I maintain that interpretation must

centre on lawmaking intentions, for in both the legislature is a complex group structured to

make and promulgate choices: neither legislature is an aggregative machine or so forth. The

difference is that legislation enacted by a Washington rather than a Westminster legislature is

more likely to be a compromise, less likely to be coherent, and less likely to be precisely

drafted. It is harder for a Washington legislature to act well. In either type of system, the

subjects of the law should aim to understand authoritative lawmaking intentions, inference

about which may be informed by differences in legislative structure.

In other words, Congress is not so well placed as Parliament to act well, but it is still

reasonably understood to be a legislature, which aims to make intelligent choices. There are

good reasons why one should not be surprised to find relatively less coherence and relatively

more surplusage in Acts of Congress than in Acts of Parliament. This will vary from

legislative act to legislative act and there are good reasons in both systems for statutory texts

to be understood to make out complex, presumptively coherent reasoned choices. The

general difference is that Congress is an agent that is standardly in the position of adopting

schemes that are framed to appeal in some way to a broader range of agents, whereas

64 E Burke, ‘Speech to the Electors of Bristol’ (1774) 65 P Pettit, ‘Varieties of Public Representation’, in I Shapiro, S Stokes, E Wood and A Kirshner (eds) Political

Representation (Cambridge UP, 2010), chapter 3

26

Parliament is an agent that is standardly in the position of choosing schemes that are framed

to mark out a unified, coherent, precise choice of what should be done.

This difference in temperament, if you like, between Congress and Parliament follows from

differences in internal hierarchy: the wide dispersal of agenda-setting power in the former

stands in contrast to the central role of a unified government in the latter. The complex

structure of the former may not only confuse the courts, as Nourse makes clear, but may also

partly frustrate the exercise of lawmaking authority. Recall the Tellico Dam example. It is

true that the court should not expect the impossible when inferring lawmaking intentions.

Hence, it is unsound to reason that if Congress had intended to repeal another Act in the

course of an appropriations bill it would have said so expressly if congressional procedure

makes it impossible to say as much. Having said this, the institutional division that makes the

direct expression of an intention to repeal impossible in this context very arguably also makes

the formation (and promulgation) of the relevant intention next to impossible. For, save

perhaps in exceptional circumstances, a decision as to appropriation of funds is not a decision

to authorise whatever changes in the law might obstruct the expenditure of these funds.

Those legal changes fall to be made by way of the procedure for making them, even if this

means that by virtue of congressional procedure continued work on the project in question

might require a complex two-stage lawmaking act.

The differences that obtain between Congress and Parliament go to the character of their

respective agency, the way in which they are likely to intend to act, rather than to the

question of whether they are agents at all, whether they are capable of intentional action. It

seems to me that Acts of both types of legislature ought to be received and understood in the

same way, as rational lawmaking acts.

The central axiom of well-formed interpretive practice is that the legislature is an institution

that aims to act responsibly for the common good. This axiom is no fiction for it responds to

the rationale for legislative authority, giving subjects of the law reason to understand the

legislature’s act to change what they should do and also animating and explaining the

structure and operation of the legislature. The legislature is a type of institution that is capable

of acting responsibly for the common good and in understanding particular exercises of

legislative authority interpreters should presume that the legislature was what it should be and

is capable of being: a rational, reasonable lawmaker. It follows that there is an important

difference between how a court (or citizen) interprets an authoritative legislative act and how

a historian or political scientist explains legislators and their acts and intentions.66 The subject

of the law should be slow to hypothesize, and even slower to conclude, that the legislative act

is vicious, arbitrary or irrational.67 For, while possible, any such hypothesis or conclusion is a

postulation or judgment that the legislature has failed to do its duty. A mistaken or unjust

exercise of legislative authority has intra-systemic validity, yet fails to be a central case of

authoritative lawmaking. The relevant lawmaking choice changes the law in the way made

clear, but fails fully to bind in conscience.

The legislature is able to act reasonably to change the law because legislators intend jointly to

legislate, to change the law in some way for some reasons. Legislators may (and often

should) do other things in the course of this joint action, including speaking to the electorate

with a view to the next election, but the joint end is vital. Reasonable legislators act thus, and

66 J Finnis, ‘Priority of Persons’, chapter 1 in J Horder (ed), Oxford Essays in Jurisprudence (Oxford University

Press, Oxford, 2000), 1, 13. 67 T Hobbes, Leviathan, A Martinich (ed) (Broadview Press, Peterborough, 2005), chapter XXVI.

27

it is their disposition that provides the rationale for the institution and its operation. Other

legislators are likely also to adopt this disposition at least to some extent and in some way,

even if only for form, such that it structures the joint action of all legislators. And from

outside the legislature, there are good reasons for the subjects of the law (including judges) to

take the legislature to be what it is capable of being and should be, viz. an authority that

responds to reasons by choosing how the law is to change. That is, there is no reason why the

grant of legislative power to an institution requires the subjects of law – in understanding the

law the legislature has chosen – to be open to the possibility of corruption or abandonment of

duty. Hence, the central axiom noted above has a ground in the structure of the legislature,

the explanatory priority of the reasoning of reasonable legislators, and the basic grounds of

the legislature’s constitutional authority. My argument may seem similar to the Macy thesis

that the reality of legislative action, per public choice theory, is grubby rent-seeking, which

the courts should discipline by taking hypocrisy at its word.68 My point, however, is that the

rationale for legislating, and at least partial realisation in legislative action, provide good

reason both to think that the legislative act is indeed what it purports to be – even if some of

the legislators are incompetent or corrupt – and that legislative acts in general should indeed

be understood to be what they should and may be.

In interpreting a statute, the subjects of law respond to the action of the institution in whom

the legislative power has been vested, which presumably has exercised that power, that

lawmaking authority, in enacting the statute. The ‘presumably’ matters, for the legislature

may have failed to exercise the power in the full sense – neglecting the common good in its

deliberations, or failing to focus on the statutory text as a possible candidate for choice.

These failures may be more or less radical: from bribery, to electioneering, to exhaustion.

The question is to what extent these failures ought to be transparent to the subjects of the law

in the course of determining the changes to the law that the legislature’s act has introduced.

It is difficult to determine in any particular case whether the legislature has misused its

authority, failing properly to exercise its power. The constitution should not make provision

for particular acts to be impeached on the grounds that they are, properly understood, no true

judgment about reasonable lawmaking at all. For similar reasons, and in addition for charity

and comity, the subjects of the law ought to take the legislature to be striving to exercise its

capacities and hence ought to take the legislative act to be a presumptively coherent, rational

lawmaking act. In other words, the legislature is to be taken to be an agent that makes

intelligent choices which may be inferred.

For my part, I think even in relation to an institution as unpopular and problematic as

Congress, the axiom is well grounded, capturing a central truth about the stable identity of the

institution, which frames how members reason and act, including the rules they adopt and

maintain. New members enter an existing institution which, whatever its pathologies, is

understood by those who belong to it to be explained and animated by an understanding of

the reasonable exercise of the legislative power. In relation to all purposive groups, there is

always the possibility for a real, if non-central, kind of joint action notwithstanding private

corruption or defection.69 And what is held out jointly in public to others and to those for

whom one acts partly constitutes the order that is one’s joint intentions. None of this is to say

that private corruption or defection are unproblematic, or fail to leave their mark on the

content of the lawmaking acts in question. But it is to say that an interpretive axiom that the

legislature is a rational agent that acts for reasons and presumptively coherently is no mere

68 J Macy, ‘Promoting Public-Regarding Legislation Through Statutory Interpretation’ (1986) 86 Columbia Law

Review 223 69 Ekins (2012), 64-66

28

fiction. It is grounded first and foremost on the truth about the type of institution the

legislature is, of which Congress is recognisably an instance, which truth informs and frames

the interactions amongst legislators, and amongst legislators plural and wider world.

IX. Updating interpretation

Interpreters should aim to infer the meaning the legislature intended to convey in uttering the

semantic content of the text in the particular context of enactment and the lawmaking

intentions promulgated in its enactment. The legislative intent in any particular lawmaking

act has this complex character. Thus, inferring the legislature’s intended meaning very often

calls for one also to infer the legislature’s intentions to change the law in some particular way

and its intentions thereby to change how subjects of the law reason and act, such that some

aspect of the common good is better realised than would otherwise be the case. Intentions are

nested within each other in this way and while, save in exceptional cases, one’s main concern

is with the proximate intention, viz. the legislature’s intended meaning, inferring that

intention requires inference about the legislature’s other, less proximate, intentions.

Legislating is the complex, intentional act of an agent, the legislature, and statutory

interpretation requires interpreters to understand this action.

It follows that one infers legislative intent from the public context of enactment, not from the

context of adjudication. The relevant context thus includes the law at the time of enactment,

which there is good reason to think the legislature considered and intended to change in some

way. This context may also include the polity’s commitments as a matter of international

law, and one may presume that the legislature does not intend to place the polity in breach.

The set of a state’s international legal commitments changes over time. Commitments

entered into after the enactment of the statute are not relevant to its interpretation for they

cannot inform our inference about what was intended at enactment. The Australian High

Court has divided on this point, with the majority taking the view I have just outlined.70

Stephen Gageler, formerly Solicitor-General of Australia and now a new High Court Justice,

has, if not in so many words, adopted the minority view, suggesting that legislation is

interpreted within a context that changes over time.71 Where legislation is intended to be

consistent with or to give effect to some rule of international law, such as the doctrine of

diplomatic immunity for example, then the legislation’s application may very well turn on

subsequent changes in the relevant international legal practice. This is entirely consistent

with the priority of the lawmaker’s intention.

The Gageler position resonates with the familiar phrase, which has statutory force in a

number of jurisdictions, that the statute is to be construed as ‘always speaking’, or

alternatively that an updating construction is to be applied. Much that is done under the name

of these formulae seems to me entirely reasonable and indeed to be nothing more than the,

often difficult, application of general terms to complex new facts. However, the formulae are

also sometimes taken to license the substitution of one rule – chosen by the enacting

legislature as its decision as to what is to be done, which then falls to be applied by the

subjects of the law, especially courts – for another.

70 Coleman v Power (2004) 220 CLR 1 71 S Gageler, ‘Common Law Statutes and Judicial Legislation’ (2011) 37 Monash University Law Review 1

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The substitution, which would otherwise look to be an obvious departure from that respect

for legislative intention which the legislative power demands, is usually rationalised by

reference to the statutory purpose. Reflection about the purpose, or complex set of purposes,

for which the legislature acts is obviously relevant to inferring its lawmaking decision.

However, respect for legislative authority demands that interpreters refrain from replacing the

legislature’s chosen set of rules with some other set which in the judgment of the interpreter

would better serve the legislature’s ends. The legislative choice – the sharp end of the

exercise of the legislative power – is some means-ends packages and the subjects of the law

are not at liberty to reshape the means to better suit the ends. This remains the case even if,

as is often the case, the legislature directs us to prefer such beneficial or purposive

constructions as will better suppress the mischief in question. (The special case of equity,

briefly discussed above and at length elsewhere, I here set aside as it is best understood to

concern a mismatch within the choice of means.)

The argument that courts should update the meaning of statutes seems to be made with more

force, or at least much more often, in the US than in the UK. The reason for this may be in

part the relatively greater difficulties of securing congressional action to amend legislation,

which may result in more statutes that seem to be outdated and that courts may be tempted to

fix. (This is not an unknown phenomenon in the UK I hasten to add.) More interesting,

however, is Einer Elhauge’s argument that courts should strive to interpret legislation

consistently with current enactable legislative preferences (rather than the preferences of the

enacting legislature) is inconsistent with legislative supremacy.72 He reasons that such a

focus on current preferences would confer more power on legislators, because it would let

them exercise indirect influence over all statutes currently in force rather than just those

statutes they enact. The problem with the argument is that the grant of legislative power to

Congress means not only that that legislature may act to make the law, but that it must act for

the law to change and its lawmaking acts remain good law until repealed. The current

preferences of legislators detached from any legislative act (the institution acting to make law

by way of the prescribed process, if any) are irrelevant and certainly should not direct the

interpretation of statutes.73

Attending to current legislative preferences strikes me, qua Anglo-New Zealand lawyer, as

odd. However, I speculate that it may resonate with agency interpretation, in which, if I

understand correctly, some agency is required to carry out its empowering statute, much of

which is relatively uncertain or vague and hence requires extensive in-filling. The mode of

congressional delegation then is not so much express delegation as enactment of vague terms,

which require further action to complete or extend. The Chevron doctrine protects agency

interpretations from judicial challenge save when the agency departs from a clear

congressional decision on point, which is another way of saying when the agency adopts an

unreasonable interpretation or departs from unambiguous legislative intent. Agencies are

subject to presidential direction (by way of appointment and removal powers) and

congressional oversight (including budgetary control) and this range of political pressures

bears on how they construe their empowering statutes. Thus, agency interpretation is perhaps

less a matter of inferring the enacting Congress’ choice but rather of adopting the agency’s

preferred policy from within a range that satisfies its political overseers. Perhaps this

speculation is unsound and congressional oversight is carefully attentive to the extent to

which agencies aim to and succeed in inferring the intentions of the enacting Congress. That

72 E. Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (Cambridge, Harvard University

Press, 2008), 23-38 73 F Easterbrook, ‘Statutes’ Domains’ (1983) 50 University of Chicago Law Review 533, 538-539

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is, each Congress jealously guards the lawmaking supremacy of its forebears rather than

directing agencies now to conform to their present preferences.

Let me outline the difference with Westminster. The British Parliament scrutinises

government policy, calling ministers to account in relation to general policy and particular

detail. But this scrutiny does not standardly bear on how ministers interpret past statutes,

including statutes on which they rely to execute policy. Or at least, scrutiny will not often

take the form of objecting to an arguable reading of a statute: either the merits of the policy

will be considered directly or the minister will be accused of breaking the law. The English

courts, in reviewing administrative action, eschew the Chevron line, instead taking all errors

of law to be a ground for review. The strict position then, relaxed somewhat in practice, is

that the judicial interpretation of all statutes is authoritative.

For my part, viewed from a distance, Chevron looks to be an intelligent way to understand

the lawmaking intentions on which Congress acts and the nature of the statutory powers it

creates, thereby avoiding administrative review collapsing to judicial supremacy. However,

my cautious, uninformed enthusiasm for the doctrine might pall rather if it gives license to

agencies to interpret statutes in a way that does not attend to the intentions of the enacting

legislature. Hence, I speculate that the interplay of agencies and Congress may be a dynamic

that encourages a type of updating construction, which risks spilling out more widely.

Having said all this, it may well be that the legislative choices in question, which are the

particular subject of agency interpretation, are such that they positively invite the adoption of

different policies over time, the merits of which adoption is rightly an ongoing political

question. Here then, one would be dealing with the specification of incomplete legislative

choices, where the choice is in part precisely to require as much. The scope for statutory

interpretation, properly so-called, would thus be quite limited. Rather, one would be engaged

in secondary lawmaking under the aegis of vague legislative choice.

X. Legislative history

The main implication for statutory interpretation of my argument about the legislative power

is that there is good reason to read statutes with a view to inferring – at least as one’s primary

task—the meaning the legislature acted intending to convey, which was chosen for reasons.

This implication says nothing about the use to which legislative history is put. This is

unsurprising for legislative history is at best partial evidence of legislative intent, an intent

which the interpreter should strive to infer from the legislature’s utterance of this text in this

context. The legislative history may form part of the context in which the legislature acts.

Alternatively, it may not be part of what is relevantly of concern to legislature and

community, but may be further, private evidence of the legislature’s intentions – just as the

discovery of an author’s personal correspondence may cast light on what he likely intended to

mean in publishing some manifesto. In either case, the legislative history records some of the

deliberation that culminates in the legislative choice, which is in principle relevant to

understanding that choice.

Legislative intent may remain of central importance in statutory interpretation even if

interpreters observe a rule excluding reference to legislative history, for the legal meaning

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and effect of the statute continues to be settled by inference about intended meaning.74 Such

inference is made from the text in its context, apart from the legislative history itself.

Legislative intent is not discerned only or even primarily (if at all) from some distinct body of

evidence, gleaned from the legislative history, which falls to be weighed alongside the text,

the context, and the statutory purpose. Rather, it is that to which the semantic content and the

context are relevant and of which the statutory purpose at best forms part, namely the

proposal for legal change on which the legislature acts. The interpreter strives to infer the

legislature’s choice, of the content of which the text and context are relevant evidence. The

interpreter infers this choice from what is salient at the time of enactment, which includes

public reports, official advice, and decisions of the superior courts, to which the legislature

may have responded in some way. Hence,75 it is never safe to read a statute in isolation from

the time of enactment, for the exercise of the legislature’s authority is to be understood in its

relationship to that context, even if the application of its chosen propositions is not exhausted

by what is foreseen at enactment.

The distinction between legislative intent and legislative history is made stark by considering

two possibilities. Imagine first a king who promulgates statutes but says nothing (outside the

preamble, if any) about his prior deliberation. Imagine second a legislative assembly that

does not retain a formal record of its proceedings, or which record is only made public years

after enactment. In either case, interpreters aim to infer the legislature’s intended meaning.

The unavailability of the legislative history does not at all frustrate this. Indeed, it would be

quite rational for the king to decline to release a record of his deliberation (his notebook or

diary or private correspondence), reasoning that the changes to the law that his act makes

should turn on what is reasonably inferred from what he has made public. And the point of

publishing the assembly’s proceedings is centrally to make provision for public scrutiny and

criticism of legislators, not to supplement or elaborate the intended meaning otherwise

inferred apart from reference to such material. Likewise, it may be feasible to promulgate

copies of statutes, but not to make readily available copies of the full legislative record, in

which case it is sound to posit a rule that in inferring the legislature’s intent in enacting this or

that statute no reference is to be made to that record.

That the legislature’s intended meaning falls to be inferred only from publicly available

evidence entails that the secret diary or private correspondence of the king is irrelevant (even

if discovered and published) to the legal meaning and effect of his enactments. The same

holds for the legislative assembly. However, one must add that the intention of the assembly

is constituted by the proposal for action that is open to the legislators and on which they

jointly act. While it is logically possible for the legislators to all agree to a course of action

that is defined by a secret proposal, known only to them, which is not intended to be

transparent to the community, this is practically impossible not to mention self-defeating, for

the proposal (by hypothesis, to change the law in some way) could not succeed unless it is

capable of recognition. Hence, the secret diary or private correspondence of any particular

legislator is not evidence of legislative intent, for it does not illuminate what was open to

legislators at large.

74 See also J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP, Cambridge, 2010), 249-

250 75 Contrast J Bell and G Engle (eds), Cross on Statutory Interpretation, 3rd edn (Butterworths, London, 1995),

52: ‘the ordinary legal interpreter of today . . . expects to apply ordinary current meanings to legal texts, rather

than to embark on research into linguistic, cultural and political history, unless he is specifically put on notice

that the latter approach is required’.

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Unlike the king, the legislative assembly standardly deliberates in public and the record of its

proceedings captures part (plainly not all) of this deliberation. Where the record of

proceedings is readily available (at or about the time of enactment), legislative history is in

principle relevant to interpretation. For the record may ground inferences about the proposal

that was open to the legislature and on which it acted and this information is publicly

available and so distinguishable from private knowledge. However, this proposition requires

significant qualification. In the central case of legislative action, one need not refer to the

record, because the proposal on which the legislature acts is transparent to the community,

which is to say open to be inferred from the utterance of this text in this context, apart from

the (partial) record of deliberation that culminated in this enactment. The reason for this is

that deliberation and action centre on that which is open to legislators at third reading (or

equivalent), which is in turn transparent to the community, members of which may infer the

intended meaning without reverting to the record of the legislative deliberation, in which the

focus was on that transparent meaning. Further, it is reasonable to presume that enactments

are drafted (and considered, adopted) with the specific intention that the legislature’s intent in

enacting them be sufficiently intelligible to any competent lawyer who reads them, without

reference to the deliberative record. That is, if the legislature acts well there is no need to

refer to the record and the legislative intent will be what it is reasonable to infer it is—the

reasoned choice of the scheme the text in context appears to make out.

It is unsound to assume that what the legislature truly intends is best gleaned from the

legislative history rather than from the text uttered in context. The legislature is structured,

for good reason, to make clear its intended meaning, such that its choice is very likely to be

what it is reasonable for interpreters to infer. The legislature may act on a proposal that

differs somewhat from that which interpreters reasonably infer it acted on, but this is a non-

central instance, where the legislative deliberation has gone astray such that what is open to

legislators differs from what is transparent to the community. It follows that legislative

history is capable of making a difference only when what is intended is not otherwise clearly

promulgated, which is a failure of legislative action. Further, the legislative history is a record

of only part of legislative deliberation and does not exhaust the reasoning of the legislators,

who reasonably understand their joint action to centre on the open proposal. It is entirely

possible then that attending to what is said by particular legislators at various points in the

process may distract one from the object of joint legislative action.

The standing risk of using legislative history to understand the legislative act is that the

interpreter will fail to reflect carefully on what proposal was open to all legislators, and hence

on which they jointly acted, and will instead take what some particular legislator or

legislators say, at some point in the process, to constitute the legislative intent. A related risk

is that what some legislator or legislators say about the purpose of some enactment or about

its likely application will be taken to constitute the legislative intent, despite the truth that

what the legislature does in exercising its authority is to choose means to ends, consisting in

universal propositions rather than a series of particular applications.

The risks are made clear in Frucor, where the majority traced the origin of s 34 to a report

recommending extension of solicitor-client privilege to patent attorneys and their clients (and

drafting a provision to that end), which recommendation the explanatory note to the bill

purported to adopt, while saying that the bill attempted to prescribe the privilege in its own

terms. This was at best equivocal, as the minority noted, and it certainly does not stipulate

how legislators understood their joint action in enacting the bill. Indeed, the flat inconsistency

between the report’s recommendation and the text of the bill would have made very clear to

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the careful legislator that, notwithstanding the explanatory note, the open proposal was to

extend only the first limb of solicitor–client privilege.

For legislative history to be used to help infer what the legislature intended, one must see

clearly the structure of legislative action, in which the focus is on the proposal that is open at

third reading and in which no particular legislator has authority to stipulate what the

legislature is doing. The discussion amongst legislators, and the history of amendments

moved and adopted or rejected, may help one infer the shape of the proposal as it develops

throughout the process. But what is open to be understood at third reading, which should be

transparent to the community at large, is decisive. Hence, one should not refer to the history

in search of a statement by some legislator that stipulates what the bill means.

The focus of legislative deliberation and action is on the proposal for lawmaking that is open

to legislators and which on third reading they jointly adopt. In the central case of legislative

action, the open proposal is transparent to members of the community, which is to say it may

be inferred from the statutory text uttered in the context of enactment. There are good reasons

for legislators to understand their joint action to be defined in this way. There are also good

reasons for the community, including its authoritative adjudicative institutions, to take what

the legislature seems to have done to change the law. Hence, there is a standing problem in

permitting reference to legislative history, in that it threatens to unsettle what is transparent to

the community (for now, citizens and their advisers must refer to the record before

concluding how the statute changes the law), which also displaces, or at least changes and

complicates, the focus of legislative deliberation (for now, legislators must reflect on how the

record of their deliberation is likely to inform inference about what they have done). The

problem would be avoided if legislative history were only used when there was no other way

to infer what the legislature has decided. It is uncertain whether it is possible to limit the use

of legislative history in this way, for after all one may always attempt to infer what was

intended. The landmark case of Pepper v Hart attempts such a limitation, providing that

Hansard may only be considered when the legislation is ambiguous, obscure, or leads to an

absurdity;76 however I doubt this is effective.77

The problem is made clear in Chief Adjudication Officer v Foster,78 a case decided

immediately after Pepper. The case concerned a challenge to the vires of a regulation made

under s 22(4) of the Social Security Act 1986:

Regulations may specify circumstances in which persons are to be treated as being or

not being severely disabled.

The relevant regulation set out circumstances not relating to the extent of disablement, but

rather to the independence of the claimant. Taken in isolation, the subsection seems

ambiguous for it could confer a deeming power to stipulate that some person is or is not

‘severely disabled’ or a defining power to make more precise the conditions under which a

disabled person counts as ‘severely disabled’ person. The court referred to Hansard and

found that the origin of this subsection (and subs (3), on which more below) was in an

amendment passed in the Lords making provision for further income support for severely

76 [1993] AC 593 at 640, per Lord Browne-Wilkinson. 77 Bennion, BST, 623–7, s 217, concluding (at 626) that ‘[i]n every case involving the construction of an

enactment, there must be a search in Hansard. This is because it is rarely if ever possible to be sure, without full

knowledge of the background, that the Pepper v Hart conditions are not satisfied’. 78 [1993] AC 754.

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disabled persons living independently. The government moved an amendment, which formed

subss (3) and (4), which the minister said was intended to provide a premium for severely

disabled persons living independently, that is, with no one else providing support or care for

them. The court concluded therefore that s 22(4) was a power to deem persons to be or not be

severely disabled (whether in fact severely disabled or not) rather than a power to define

more precisely which persons are or are not severely disabled. The problem is that this

conclusion is inconsistent with s 22(3):

In relation to income support . . . the applicable amount for a severely disabled person

shall include an amount in respect of his being a severely disabled person.

What does ‘severely disabled’ mean in this subsection? If it means a person deemed to be

such by s 22(4), then the provision is redundant or obscure. Further, if the effect of s 22(3) is

contingent on the exercise of s 22(4) then a failure to make regulations means the subsection

(and the duty to pay the amount in respect of severe disability) is defunct. Read jointly, one

has very good reason to infer that s 22(4) is a defining power only. This intended meaning is

what it is plausible to infer from the text and context. The court departs from this meaning on

the grounds that s 22(4) is ambiguous, which it is not if read in context (this confirms the

obscurity of the condition in Pepper, as well as the judicial difficulty in applying it).

It is arguable that what was open to legislators was a proposal to make provision for payment

of a premium to severely disabled persons living independently, for this is how the discussion

about the series of amendments proceeded. However, the careful legislator reading the

amended text would be likely to see that the joint effect of the two subsections, understood to

form part of a coherent, rational whole, was that all severely disabled persons were entitled to

an additional payment, with s 22(4) serving to permit further definition. Perhaps the

legislators who spoke in the relevant debate took ‘severely disabled’ to be elliptical for those

living independently or perhaps they just assumed that there was power to deem only such to

be entitled to the premium.79 Either way, this understanding was not transparent to the

community, for it did not follow from the joint adoption of the two subsections, and it is

arguable that for this reason it was not open to legislators at third reading. In relying on

Hansard to infer that the legislature acted on this proposal, which was not grounded in the

statutory text or the context, the interpreters unravelled what citizens and officials had good

reason to think was promulgated and what legislators other than those who spoke in the

relevant exchange had good reason to understand themselves to be doing.80

I conclude then that there is a principled argument for excluding legislative history. While the

use of the record of legislative deliberation is in principle relevant to understanding what

legislators intended, the structure of legislative action, with its central focus on what is

transparent to the community, militates against such use. Instead, interpreters should infer

what the legislature intends from the text uttered in context, apart from the record of

deliberation itself, and legislators should accordingly reflect all the more carefully on how

they are likely to be understood and should choose their words carefully to that end. The

integrity of legislative deliberation and action, in which legislators reflect and act on what is

open to all, warrants excluding subsequent reference to that deliberation, for this unsettles

what is open. It is sound then to protect reasonable inferences about what, legislative history

79 J Evans, ‘Controlling the Use of Parliamentary History’ (1998) 18 NZULR 1, 40–1 80 See also J Baker, ‘Statutory Interpretation and Parliamentary Intention’ (1993) 52 CLJ 353, 356–7

35

aside, the legislature seems to intend, for such inferences are valuable not only to citizens and

officials but also to legislators acting jointly in the exercise of their lawmaking authority.

My argument above is not particular to any jurisdiction, but I imagine it resonates most

closely with British law, in which the relaxation of the exclusionary rule was controversial

and has since been partly wound back. The resonance is warranted also, I suggest, because

Parliament is well-placed to develop coherent legislative choices, the intended meaning of

which is relatively transparent to subjects of the law from the text in context. Contrast the

relative difficulty that Congress encounters in exercising the legislative power, in developing

coherent, precisely drafted texts that capture its lawmaking choices. This relative incapacity

makes it more likely that legislators may act on a proposal that differs somewhat from that

which interpreters reasonably infer it acted on. Thus, Acts of Congress may more often be

non-central instances of lawmaking than is the case with Acts of Parliament. In this case,

there may be good reason to study the legislative history of the act in question, the better to

understand the scheme the legislators understood the legislature to be choosing. While this

does not answer the various worries noted above, it does place them in a different

perspective, for the challenge in this situation is how best to understand the exercise of

legislative power notwithstanding a partial failure of lawmaking.

XI. Conclusion

There is and was good reason to shatter the unity of royal authority. The separation of

legislative and judicial power makes provision for clear lawmaking, in which the community

at large may join, and for fair adjudication of disputes in accordance with settled law. The

exercise of the legislative power is the formation and promulgation of reasoned lawmaking

choices, which the subjects of the law, including judges, are to adopt as if their own. The

judicial power is a power to adjudicate not to interpret. Statutory interpretation is the

exercise of determining, as best one may, the legislature’s lawmaking intentions. These

conclusions about the separation of powers and the nature of statutory interpretation are

consistent with truths about legislative structure. Washington and Westminster legislatures

differ in important ways, which are relevant to the intentions each is likely to form but which

do not change sharply how the legislative power is exercised or should be understood.

Reflection on the separation of powers helps make clear the central truth about statutory

interpretation – that to interpret a statute is to understand the legislature’s exercise of the

legislative power, which is the making and promulgation of reasoned choices about how to

change the law, which choices the subjects of the law ought to adopt as if their own. It also

helps make clear some of the ways in which different types of legislature are structured to

exercise the legislative power, as well as the ways in which some polity’s more particular

separation of powers informs how statutes should be understood. And in turn, the study of

legislating and statutory interpretation helps make clear the ways in which the making and

interpretation of statutes is, the importance of separation notwithstanding, still in a real sense

the coordinated act of one governing, but no longer royal, agent.